P505

Being Sued By Machol & Johannes LLLP

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 1. Who is the named plaintiff in the suit?

Autovest LLC

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)
Machol & Johannes LLLP

 

3. How much are you being sued for?
$17,114.11 plus $10,454.67 intrest/ attorney fees. TOTAL - $27,568.78

 

4. Who is the original creditor? (if not the Plaintiff)
Wells Fargo Auto

 

5. How do you know you are being sued? (You were served, right?)

Summons & Complaint

6. How were you served? (Mail, In person, Notice on door)
In Person

 

7. Was the service legal as required by your state?
Yes

 

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued?
Zero.. No communication prior to Complaint

 

9. What state and county do you live in?
N.M., San Juan County (11th Judicial District)

 

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)
Last Pay Date - Oct. 29th 2009

 

11. What is the SOL on the debt? To find out:

6 years on written contract (4 years on verbal contract)

 

Statute of Limitations on Debts

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

Served Summons/Complaint for Money Due - 5/25/2013

Responded to Complaint W/Affirmative Defenses and requested dismissal - 7/8/2013

Dismissed without Prejudice Due to Lack of Prosecution - 2/20/2014

Motion to Vacate Dismissal and Reinstate (states Plaintiff plans to file Dispositive Motion when reinstated)- 3/20/14

Order Granting Plaintiff's Motion to Vacate Dismissal and Reinstate - 3/31/2014

 

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

Debt was "Charged Off" by Wells Fargo when I checked my credit report. Said Charged Off in Oct. 2009 so I figured they gave up or sold truck and got enough off of it to satisfy them. No other negative marks are on credit besides Machols & Johannes running credit prior to filing complaint.

 

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

No, I sent letter requesting Debt Verification after I recieved complaint.

They did respond telling me:

Original Debtor

Original Account number

Contract date (11/16/2007)

Charge off date (10/5/2009),

Last Pay Date (10/29/2009)

Loan agreement (which just looks like paperwork for Warranty,Vehicle Registration, and agreement between the dealership and myself.. Nothing between me and Wells Fargo..)

Deficiency Notice Stating that Deficiency balance due was $19,907.34 after selling truck for $11,400

(which I never originally recieved)

 

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

Already Responded

No Interrogatory recieved

Claims on Complaint:

 

Defendant executed a loan agreement, promissory note, credit agreement, enrollment agreement and/or

lease (the "Agreement"), payable to or for the benifit of the Plaintiff's assignor to evidence the credit extended.

 

Plaintiff claims from the Defendant the amount of $17,114.11, plus intrest ( as allowed by law) as of the date of the Complaint of $10,454.67, and reasonable attorneys' fees, plus court costs, along with continuing intrest at the rate of 16.79% per annum.

 

Plantiff's claim arises from the Defendants failure to pay the liquidated balance due on account number xxxxxxxxxx. The Plantiff claims the right to recover from the Defendant under one or more of the following legal theories: Breach of Express Contract, Breach of Implied Contract, Quantam Meruit, Account Stated and Unjust Enrichment.

 

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

 

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

 

No Evidence at all was attached with Complaint. Just papers saying "This letter is to provide you with our contact information and to provide you with an opportunity to make voluntary payment arrangements on your account."

It goes on to say that it is "not part of a legal pleading and this letter is not part of the Summons and Complaint".

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"Charged off" is merely an accounting term that records the account on the profit and loss statement as a loss as bad debt.  It has not affect on you as the consumer from a credit or suit perspective.

 

Deficiency Notice Stating that Deficiency balance due was $19,907.34 after selling truck for $11,400

Plaintiff claims from the Defendant the amount of $17,114.11, plus intrest ( as allowed by law) as of the date of the Complaint of $10,454.67, and reasonable attorneys' fees, plus court costs, along with continuing intrest at the rate of 16.79% per annum.

 

Something is not adding up here.  If the balance after selling was $19k why are they suing for almost 2k less?  Second:  NM does not allow for interest prior to the judgment date so that $10k they are adding on may be illegal.  

 

I would consult a NACA attorney ASAP because this is NOT like a credit card suit and that is A LOT of money.

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You did a good job stating the facts ............ do you have any questions?

I have one for you ......... did you file an opposition to the motion to vacate the dismissal?

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"Charged off" is merely an accounting term that records the account on the profit and loss statement as a loss as bad debt.  It has not affect on you as the consumer from a credit or suit perspective.

 

Deficiency Notice Stating that Deficiency balance due was $19,907.34 after selling truck for $11,400

Plaintiff claims from the Defendant the amount of $17,114.11, plus intrest ( as allowed by law) as of the date of the Complaint of $10,454.67, and reasonable attorneys' fees, plus court costs, along with continuing intrest at the rate of 16.79% per annum.

 

Something is not adding up here.  If the balance after selling was $19k why are they suing for almost 2k less?  Second:  NM does not allow for interest prior to the judgment date so that $10k they are adding on may be illegal.  

 

I would consult a NACA attorney ASAP because this is NOT like a credit card suit and that is A LOT of money.

 

Part of that 19 thousand was for attorney fees in deficiency notice. so I'm assuming the difference is that they left that amount out in complaint.

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You did a good job stating the facts ............ do you have any questions?

I have one for you ......... did you file an opposition to the motion to vacate the dismissal?

 

Thank you.. and yes I have a ton of questions..

I did not file opposition to the motion to vacate because the Judge signed order only 10 days after it was filed.. I was still in the process of preparing one..

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Sorry for the delay had to pull double shift..

Question 1 - what's my next step? Do I wait for MSJ to be filed by OC? Or do I file for production of documents?

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It's okay about not getting the motion in opposition in. They were just trying to save the filing fee for a new case. Since it was dismissed without prejudice, they would have refiled had the motion been not well taken.

 

Production of documents! Engage in discovery. Admissions, Interrogatories too. They are certainly going to hit you with an MSJ since they mentioned dispositive motions so you will have to engage that in the near future. 

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I just realized when back over complaint they are not coming after me for breach of "written" contract.

 

"The Plaintiff claims the right to recover from the Defendant under one or more of the following legal theories: Breach of Express Contract, Breach of Implied Contract, Quantum Meruit, Account Stated and Unjust Enrichment."

 

Does that mean they probably don't have the original contract?..

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It is a possibility. You won't know until you ask for it. Research your state and see if they are required to attach the account (statements) for the account stated complaint.

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This is what I have so far, tell me what you think.

And if there is anything I should add.

 

 

STATE OF NEW MEXICO

SAN JUAN COUNTY

MAGISTRATE COURT

 

Autovest, L.L.C.,

 

                Plaintiff,                                                                                                               No. D-xxxx-xx-2013-xxxx

vs.

 

xxxxxxxxxxxxx,

 

                Defendant.

 

DEFENDANT’S FIRST

REQUEST FOR PRODUCTION OF DOCUMENTS TO PLAINTIFF

 

TO:         Autovest, L.L.C.

                c/o xxxxx xxxxxx

                Machol & Johannes, LLLP

                XXXX Xxxxxxx Xxxx XX, xxx

                Albuquerque NM XXXXX

               

                COMES NOW Defendant, Defendant requests the Plaintiff produce the following documents for copying and inspection within thirty (30) days from service pursuant to Rule 1-034, NMRA.

              

                   For the purposes of these document requests, the following definitions and instruction apply:

 

 The term “document” includes, but is not limited to, written, typed, printed, electronically recorded, or reproduced letters, memoranda, notes correspondence, conversations, documents, contracts, diaries, records, statements, reports, photographs, computer tapes or disks, compilations, and all other recorded information, as well as anything attached, clipped or connected thereto, known to Plaintiff and/or agents of Plaintiff whether or not such information is in the custody, possession, or control of Plaintiff or Plaintiff’s attorneys. This definition includes, but is not limited to, any drafts, duplicates or other copies of the above defined documents.

 

  1. If the Plaintiff or any agents of the Plaintiff , including attorneys, are aware of the existence of any document within the scope of these document request, which is not within the custody, possession, or control of the Plaintiff, please identify any such document in a written response to the request for the production of the document. In identifying a document in this fashion, it is requested that the following information be provided: the name, address and telephone number of the person who has possession, custody, or control over the document; a brief summary of the nature of the information contained in the document; the date of the document; and the name of the person who prepared the document.
  2. These requests for production of documents are continuing. In the event that the Plaintiff or Plaintiff’s attorneys become aware of any document within the requests set forth below, after the Plaintiff ’s production of documents, such additional responsive information shall be immediately furnished to Defendant.
  3. If any document is not being produced in response to these requests for production of documents, based upon claim of privilege, it is requested that the Defendant note the nature and reasons supporting the claim of privilege and identify the document so that the claim of privilege can be evaluated.

 

 

 

REQUESTS

REQUEST NO. 1:  Attach copies of all exhibits or documents that you plan to introduce into evidence at trial.       

RESPONSE:

 

 

 

REQUEST NO. 2:   Please provide a contract, agreement, assignment, or other means of demonstrating that the Plaintiff has the authority and was legally entitled to collect on the alleged debt.

RESPONSE:

 

 

 

REQUEST NO. 3:   Please furnish reasonable proof, such as an original, or copies of the assignment agreement or assignment agreements, transferring the alleged contract and/or account in question from Wells Fargo Bank over to Autovest LLC  to show an Assignment has been made and that Autovest LLC are the real party in interest.

RESPONSE:

 

 

 

 

 

REQUEST NO. 4:   Please provide evidence /proof of the Defendant’s alleged debt to Plaintiff, including specifically the alleged contract, between the Plaintiff and Defendant or any other instrument constructed solely for the purpose of creating a loan agreement between the Plaintiff and Defendant bearing Defendant’s signature and/or Please produce the contract that legally requires the Defendant to pay the amount entered into complaint.

RESPONSE:

 

 

 

REQUEST NO. 5:   Please provide the original or copy of the account agreement that states interest rate, grace period, finance charge, assignment, and specifically the State Laws that the agreement and account are governed plus other important facts.

RESPONSE:

 

 

 

REQUEST NO. 6:  Please provide evidence of authorization of Plaintiff to do business, create loans, issue or extend credit, collect debts and/or operate in the State where the Plaintiff conducts their business.

 RESPONSE:

 

 

 

 

REQUEST NO. 7:   Please provide evidence of authorization of Plaintiff & Attorney to do business, create loans, issue or extend credit, collect debts and/or operate as a financial business in the State of N.M.

RESPONSE:

 

 

 

 

REQUEST NO. 8:   Please provide a document or document(s) that proves you did send the Defendant a notification of assignment of the account or assignment of rights.

RESPONSE:

 

 

 

 

 

REQUEST NO. 9:   Please attach copies of all statements generated while this alleged account was open with Plaintiff.

RESPONSE:

 

 

 

 

 

 

 

REQUEST NO. 10:   Identify each Credit Reporting Agency (credit bureau) to which the Plaintiff reported Defendant’s debt and the dates of each such report.

RESPONSE:

 

 

 

 

REQUEST NO. 11:   Please attach any and all notices sent to Defendant by Plaintiff in regards to account announcing transfer and/or assignment of credit card account from Plaintiff to any collection agency or collection attorney.

RESPONSE:

 

 

 

 

REQUEST NO. 12:   Please attach a copy of the agreement with Plaintiff that grants Machol & Johannes  Attorney(s) the authority to collect this alleged debt.

RESPONSE:

 

 

 

 

REQUEST NO. 13:   Please attach a copy(s) of letter (s) sent to defendant by Certified Mail., demonstrating an attempt to collect on the alleged debt.

RESPONSE:

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Another Ques.

Should I send in  Request for documents while I'm working on interrogatories and admissions or wait and send them all together?

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I have to head to class but can provide feedback on those requests later tonight.  Some of them are not appropriate or not required by law.  You want them to be on point not spraying machine gun fire that may never hit the target.  I will be back.

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Thank you guys for helping me this is the 1st time ever dealing with the courts, besides for child custody issue which never made it to court. I am trying my hardest to learn as much as possible so I can represent myself because no attorneys work on collection issues in my area.

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Here is a forward flow agreement between Wells Fargo and Autovest. It has the typical holes as to whether title or claims are clear or correct. You need your forward flow agreement in discovery. Most interesting read.

 

http://dalie.org/wp-content/uploads/2014/02/2011.01.06-Wells-Fargo-and-Autovest-LLC-as-is-also-says-unsecured-even-tho-secured.pdf

 

 

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Thank you guys for helping me this is the 1st time ever dealing with the courts, besides for child custody issue which never made it to court. I am trying my hardest to learn as much as possible so I can represent myself because no attorneys work on collection issues in my area.

 

Okay my microeconomics class is done for the night so now I was able to take a serious look at these.  I would not use them because they are clearly cut and pasted from the internet somewhere.  Many are not even relevant which tends to get you sanctioned by the courts.  For example:

 

#6:  Is not relevant at all to your case and is between the Plaintiff and the state their home office is in.

#7:  If NM doesn't require licensing this isn't relevant either and really is a waste of time even if they do

#9:  WAY too broad

12:  M&J is merely the law firm hired to represent the Plaintiff and that document is protected by attorney client privilege

13:  There is NO requirement under the FCDPA that they send collection letters certified mail.  This is a snipe hunt and they will know it.

 

When you send RFAs, Requests for Documents, and Rogs you want to be credible.  Here are the ones I have drafted that have given people some success:

 

1.  Admit that plaintiff lacks documentation/evidence to reasonably sustain their claim in a New Mexico Court that the defendant owed/owes a debt to the plaintiff or any creditor identified in the complaint.

 

2.  Admit that plaintiff Autovest LLC. lacks standing to sue on the account alleged in the complaint.

 

3.   Admit that the plaintiff lacks sufficient documentation that Autovest LLC is the true and rightful owner of the specific account alleged in the complaint as belonging to the defendant.

 

4.  Admit that the affiant(s) in any affidavit in the possession of the plaintiff lacks personal knowledge of the account in the complaint alleged to belong to the defendant.

 

5.  Admit that plaintiff added interest in the amount of $(amount).

 

6.  Admit that plaintiff lacks documentation supporting their claim that defendant has ever owed a debt related to an account for which the Plaintiff is legally entitled to collect on.

 

7.   Admit that plaintiff Autovest LLC has never contacted defendant via any correspondence regarding the alleged account.

 

8.  Admit that the Plaintiff has never had a contract with the Defendant on this or any other account alleged in the complaint.

 

9.  Admit that Plaintiff does not employ anyone with personal knowledge sufficient to legally verify the accuracy of business records of Wells Fargo.

 

10.  Admit that plaintiff added interest at a rate in violation of New Mexico law(s) and which the defendant was not contractually obligated to pay.

 

 

DOCUMENTS TO BE PRODUCED

1.  Provide the actual loan contract at the time the alleged account was opened and upon which your complaint is based on including the contractual interest rate, grace period, finance charges, and specifically the State Laws that agreement and account are governed plus any other important facts

2.  Provide the contract, agreement, assignment, or other means of demonstrating that Plaintiff has the authority and is legally entitled to collect specifically on the debt allegedly owed by the Defendant.

3.  Furnish the original or copies of the assignment agreement or assignments agreement, transferring the alleged contract and specifically the account alleged in the complaint from Wells Fargo and Autovest LLC.

4.  Provide copies of specifically the alleged contract, between the Plaintiff and Defendant or any other instruments constructed solely for the purpose of creating a credit agreement between the Plaintiff and Defendant.

5.  Produce the contract that legally requires the Defendant to pay the amount entered into the complaint.

6.  Provide copies of the amount(s) paid in the debt purchase for the alleged account.

7.  Provide a document or document(s) that prove you sent the Defendant a notification of assignment of the account or assignment of rights.

8.  Attach any and all notices sent to Defendant by plaintiff in regards to this alleged account demanding payment.

9.  Attach copies of all statements generated in the first 3 months of account activity after inception and the last 6 months of alleged account activity prior to the alleged default.

10.  Attach a complete and accurate history of the interest charged on this alleged account with Plaintiff.  Show the exact dates those interest rates changed and list the actual rates that were charged during this debt and the exact method of amortization.

11.  Identify each Credit Reporting Agency (Credit Bureau) to which the Plaintiff reported Defendant’s debt and the dates of each such report.

Defendant's First Interrogatories To Plaintiff

 

1.  State with factual particularity the basis for your claim that the Defendant owes an alleged debt to the Plaintiff.

2.  Identify all documents that you assert constitute the contractual agreement(s) between the parties.

3.  Identify the number of payments and amount of every payment made toward the underlying contract by the defendant, or made by any other party on defendant’s behalf.

4.  Identify all documents and/or correspondence either sent to, or received from, the Defendant or relevant to this matter.

5.  Identify all persons whom you contend have knowledge of the facts which evidence or tend to support the denials, assertions and allegations as set forth in your Complaint, stating for each such person his or her name, address, telephone number, and provide a brief statement of the facts as to which each such person has knowledge.

6.  Identify all documents, by title and date, which you contend evidence or tend to support the assertions and allegations as set forth in your Complaint, and provide the name, address and telephone number of the current custodian for each such document.

7.  State with factual particularity the basis for your denial of any Request for Admission of Fact that you deny.

9.  State the amount you contend Defendant owes Plaintiff and describe how you calculated that amount.

10.  Identify all documents or other tangible things which you believe prove, support, or constitute evidence of any fact or circumstances supporting Plaintiff's answer.

11.  State each and every fact upon which you based your allegation of the indebtedness claimed owed by Defendant.

12.  State with factual particularity the basis for the assertion of plaintiff’s standing.

13.  State with factual particularity the basis for your assertion that Plaintiff has a valid assignment.

14.  State each and every fact upon which Plaintiff claims that the Complaint is being prosecuted by the real party in interest.

15.  Please identify by name and address all persons who provided information or other assistance in answer to these interrogatories.

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Repos have a four year SOL from date of the resale of the Repo. You need to bring the SOL defense to the list of affirmative defenses. After the resale the SOL is subject to the UCC.

 

Here is some data from Whychat's Site: http://whychat.5u.com/repoltr.html 

 

From the WhyChat site:  "It should not be used if you have been sued, or if the repossession is less than 2 years ago."

 

That site only covers when the repo is more than two years old and you are not being sued.  It is about removing it from a credit report not defending yourself in a lawsuit.

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I can't thank you enough for helping me with this. It's been stressing me out. I will work on these tonight and hop back on here tomorrow with update.

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It is and I stated about the UCC and the SOL now being 4 years. The OP is beyond the four year mark. The OP needs also the forward flow agreement and to state an affirmative defense of SOL based on the UCC. The OP says the repo was from 2009.

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I can't thank you enough for helping me with this. It's been stressing me out. I will work on these tonight and hop back on here tomorrow with update.

 

You said there are no consumer attorneys in your area.  Use naca.net and find one in your state.  They may be able to help you from a distance or recommend a colleague in your area that can help.

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Thank you Clydesmom!.. your info turned me on to someone who "might" help. His secretary said "help" not represent though. Every consumer Attorney in my town all said they can only help me if I'm filing for bankruptcy. I have consultation on Tues. with this guy, hopefully he can help.

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